Tag: Copyright Law

John Steinbeck passed away in 1968, leaving behind a litigious set of heirs who have fought over the right to control his literary work for decades. The most recent iteration of this legal battle, this time between Steinbeck’s daughter-in-law and Steinbeck’s stepdaughter, ended with a jury award of $13.15 million to the stepdaughter.

Here’s the backstory:

Through his will, Steinbeck left ownership of the copyrights he renewed in his lifetime to his wife and a $50,000 trust to each of his two sons (from a previous marriage).

By law, Steinbeck’s wife as well as his sons were entitled to royalty payments for the works renewed after his death (the law required publication/registration and permitted renewal back then; it’s different now).

A 1983 settlement agreement increased the sons’ share of the royalty payments in exchange for giving Steinbeck’s wife control over the exploitation of the copyright (which means the right to license the work to third parties, turning it into royalty-generating movies, spin-offs, etc).

Steinbeck’s wife died in 2003, leaving ownership/control of the copyrights to her heirs, including Steinbeck’s step-daughter.

In the most recent litigation, the step-daughter alleged that the son and daughter-in-law thwarted attempts to turn Steinbeck’s works into royalty-generating projects, including new movies (projects that purportedly interested Steven Spielberg and Jennifer Lawrence).

The jury sided with the step-daughter, and the daughter-in-law has stated she will appeal. After that, let’s hope the battle over the copyrights to Steinbeck’s work will finally come to an end. Unfortunately, it’s possible that new legal issues will arise among the heirs until John Steinbeck’s work falls into the public domain, a date that the law has pushed back numerous times since Steinbeck’s death.

Based on the law at the time Steinbeck wrote his novels, when authors were entitled to two consecutive 28-year-terms of copyright protection (56 years total), his books would be in the public domain by now. However, the 1976 amendments to the Copyright Act changed the copyright period for Steinbeck’s novels to 75 years. Then, in 1998, for works still within the 75-year-period, amendments to the law extended copyright protection by another twenty years. The extension was challenged as unconstitutional but, in 2003, the Supreme Court upheld it 7-2 in Eldred v. Ashcroft. The result is 95 years–nearly a century–of copyright protection.

Think of all the judicial resources our courts would’ve saved had Steinbeck’s works entered the public domain after 56 years instead of 95? Think of all the derivative works–the retellings, the new movies–we could’ve enjoyed by now?

Oppressively long copyright protection does nothing more than stifle creative derivative works and enrich heirs who often have merely a tangential relationship to the person who created the work. As Justice Breyer wrote in his dissent in Eldred:

[A]ny remaining monetary incentive is diminished dramatically by the fact that the relevant royalties will not arrive until 75 years or more into the future, when, not the author, but distant heirs, or shareholders in a successor corporation, will receive them. … What potential Shakespeare, Wharton, or Hemingway would be moved by such a sum? What monetarily motivated Melville would not realize that he could do better for his grandchildren by putting a few dollars into an interest-bearing bank account?

With Steinbeck’s books, we may finally see more derivative projects develop, but only if the creators of those projects are willing and able to pay the price Steinbeck’s wife’s heirs want for it.

These derivative works would be fine if the classic books were in the public domain, like L. M. Montgomery’s Anne of Green Gables, a source of inspiration for Anusha of Prospect Corner(Modern Middle Grade), and Jane Austen’s Persuasion, the basis for Amelia Elkins Elkins(Contemporary Fiction).

While at least one forthcoming KinderGuide is based on a public domain work–Jane Austen’s Pride and Prejudice–the majority are based on books that are still under copyright. The first set of KinderGuides includes the following copyrighted works: Truman Capote’s Breakfast at Tiffany’s, Ernest Hemingway’s The Old Man and the Sea, Jack Kerouac’s On the Road, and Arthur C. Clarke’s 2001: A Space Odyssey.

Moppet Books does not have a license to borrow from these novels, prompting the literary estates of Capote, Hemingway, Kerouac, and Clarke, Penguin Random House, and Simon & Schuster to sue them for copyright infringement. The plaintiffs filed the complaint–available here (PDF)–in the United States District Court for the Southern District of New York on January 19, 2017.

According to the complaint:

Although defendants call their Infringing Works ‘guides,’ the Infringing Works do not purport to be companion reference books or study guides for readers of the novels, such as those commonly used by college students. Indeed, it is hard to imagine a situation in which a 6-year-old child would have the need for a ‘study guide’ to inform his or her understanding of the adult novels.

Yes, it is hard to see a Kindergartener using a “study guide” for these classics, but the derivative works could still be “fair use” (and therefore not copyright infringement) depending on its (1) purpose, (2) nature, (3) the “amount or substantiality of the portion” of the original work used; and (4) the impact of the use on the original work’s market. Copyright Act, 17. U.S.C. § 107.

Without examining the allegedly infringing work against the original novel, I can’t say whether I think these KinderGuides violate copyright law. My gut sense is that it could be copyright infringement if the KinderGuides add little new content to the original works (and thus aren’t sufficiently “transformative”) and use a substantial portion of the original works. We’ll see what happens with the case.

Interestingly, this isn’t the first time Moppet’s Frederik Colting has found himself in court facing similar allegations. He is the author (writing under a pen name) of 60 Years Later: Coming Through the Rye, the unauthorized sequel to J.D. Salinger’s Catcher in the Rye. In 2009, Salinger filed suit against Colting, alleging copyright infringement. In the settlement, Colting agreed not to sell his derivative novel in the United States.

Among the “coming titles” in Colting’s KinderGuides series is a children’s version of Catcher in the Rye. I wonder what the Salinger estate thinks about that.

UPDATE 9/12/17 (see Publishers Weekly, citing Judge Rakoff’s opinion): “Fair use, however, is not a jacket to be worn over an otherwise infringing outfit. One cannot add a bit of commentary to convert an unauthorized derivative work into a protectable publication.” The judge permanently enjoined distribution of the works.

In a lawsuit filed in federal court earlier this month, Dr. Seuss Enterprises alleges copyright infringement, trademark infringement, and unfair competition against ComicMix and others involved in the project. According to the complaint, the allegedly infringing work is a mixture of Star Trek and several of Dr. Seuss’s books, including Oh, The Places You’ll Go!, Horton Hears a Who, How the Grinch Stole Christmas, The Lorax, and The Sneetches and Other Stories.

ComicMix knew a lawsuit like this one might happen, stating on their Kickstarter campaign (according to the Complaint, which is available here):

While we firmly believe that our parody, created with love and affection, fully falls within the boundary of fair use, there may be some people who believe that this might be in violation of their intellectual property rights. And we may have to spend time and money proving it to people in black robes. And we may even lose that.

We’ll see what those “people in black robes” decide. If I were one of them, I’d say Oh, The Places You’ll Boldly Go! is clearly a parody that falls into the “fair use” exception to copyright infringement.

Under American copyright law, an author’s estate has the exclusive right to a deceased author’s works for many decades after the author’s death. Seuss died in 1991, hence the rise of Dr. Seuss Enterprises to posthumously make money off of his works. A derivative work like Oh, The Places You’ll Boldly Go! is not infringement if it’s “fair use,” which involves four factors:

(1) the “purpose and character of the use” (is it educational? Is it commercial? Is it transformative?);
(2) “the nature of the copyrighted work;”
(3) “the amount and substantiality of the portion” of the original worked used;
(4) the impact of the use on the original work’s market.Copyright Act, 17. U.S.C. § 107.

Based on the excerpts in the Complaint, Oh, The Places You’ll Boldly Go! is a transformative work that meets the definition of a “parody.” According to the United States Supreme Court, quoting the American Heritage Dictionary, a parody is a “literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (holding that a commercial parody may fall into the “fair use” exception to copyright infringement).

Who would confuse Oh, The Places You’ll Boldly Go! with any of Dr. Seuss’s original books? No one.

Would Oh, The Places You’ll Boldly Go! reduce Dr. Seuss’s marketability? Probably not. If anything, parodies like Oh, The Places You’ll Boldly Go! increase the marketability of the original stories because they encourage people to revisit them.

In this case, it’s hard to see how Oh, The Places You’ll Boldly Go! harms Dr. Seuss Enterprises. They assert that they’re missing out on a licensing fee opportunity, but a derivative project might not happen at all if the authors have to pay a toll for the privilege of borrowing elements from a previous work for the purpose of parody. Instead, by filing this lawsuit through their DLA Piper lawyers, Dr. Seuss Enterprises is using the court system to squelch creativity in the arts, which is the exact opposite of what copyright law aims to accomplish.

Oh, the people you’ll sue! There is pain to be done! There are artists to be gored. There are claims to be won. And the magical things you can do with a corporate lawyer will make you the free expression destroyer. Rich! You’ll be as rich as grave robbers can be, with social media trashing your brand with glee.

For me, it’s this unnecessary lawsuit — not the allegedly infringing work — that detracts from Dr. Seuss’s legacy. I’m less likely to share his books with the children in my life now.

Remember when Arthur Conan Doyle’s heirs lost their “quixotic” quest to control Sherlock Holmes for 135 years in Klinger v. Conan Doyle Estate? Now the estate is at it again — this time as the plaintiff — in a new lawsuit filed earlier this month: Conan Doyle Estate v. Miramax, et al.

Is the estate’s expansive position on copyright protection more likely to succeed this time around?

Let’s start with the Klinger case:

In that case, the editor of an anthology inspired by Sherlock Holmes sued the estate after it demanded a licensing fee from them. Those new stories were based on Conan Doyle stories in the public domain, but the estate argued that stories dating back as far as 1887 deserved copyright protection because a small number of later Conan Doyle works featuring Holmes and Watson were copyright protected until 2022.

Well, that was bullshit. As Judge Richard Posner of the 7th Circuit Court of Appeals wrote in an amusing opinion after an even more amusing oral argument (available here):

With the net effect on creativity of extending the copyright protection of literary characters to the extraordinary lengths urged by the estate so uncertain, and no legal grounds for extending copyright protection beyond the limits fixed by Congress, the estate’s appeal borders on the quixotic. The spectre ofperpetual, or at least nearly perpetual, copyright [] looms, onceone realizes that the Doyle estate is seeking 135 years (1887-2022) of copyright protection for the character of Sherlock Holmes as depicted in the first Sherlock Holmes story. [emphasis added]

Thus, contemporary authors are free to copy features of Sherlock Holmes stories that are now in the public domain.

As for the ten stories published after 1923 that are not yet in the public domain, Posner explains that they are “derivative from the earlier stories, so only original elements added in the later stories remain protected [under copyright law].”

That brings us to the second case, Conan Doyle Estate v. Miramax, et al:

In this case, filed last week in the U.S. District Court for the District of New Mexico, the Conan Doyle Estate has sued the creators and distributors of unauthorized contemporary works — a novel and a movie based on that novel that comes out in July — that feature a retired Sherlock Holmes. The lawsuit alleges copyright and trademark infringement claims against Miramax, Roadside Attractions, Penguin Random House, Mitch Cullen, and William Condon.

The novel at the heart of this case is Mitch Cullen’s A Slight Trick of the Mind, which Cullen adapted into a movie, Mr. Holmes, starring Ian McKellan and Laura Linney.

The lawsuit alleges that Cullen took original elements from the last ten Conan Doyle stories about Sherlock Holmes’s character, retirement, and living arrangements, and inserted them into his new work. The estate claims in the complaint that “[the] copyrighted ten stories develop the details of Holmes’s fictional retirement and change and develop the character of Holmes himself,” while acknowledging that “two of Conan’s Doyle’s public domain stories make references to Holmes’s retirement, placing [certain] elements about it in the public domain.”

If the elements used in the allegedly infringing works originate in the last ten Conan Doyle stories, then they are entitled to copyright protection. If, however, they are derivative of elements of earlier Sherlock Holmes stories, then they are in the public domain.

I’ve never read Cullen’s A Slight Trick of the Mind, and I don’t remember Conan Doyle’s last ten Holmes stories well enough to assess whether Cullen infringed on Conan Doyle’s copyright-protected work as a factual matter. I will say, though, that much of what the estate alleges as “original features” of the ten copyrighted works is pretty vague: that Holmes developed an interest in nature, an affection for dogs, and a capacity to love another human being in his later years. Do these types of general traits warrant protection under copyright law?

**The trademark and unfair competition claims relate to Mr. Holmes. The estate alleges that the movie uses marks that will “create confusion in the marketplace and a false impression in the minds of the public that [the estate] is somehow sponsoring or affiliated with […] or endorsing defendants’ movie.”

Arthur Conan Doyle died 84 years ago, leaving behind the fictional Sherlock Holmes and real-life heirs that have demanded a toll from those who pay homage to Conan Doyle’s work. Leslie S. Klinger, the editor of an anthology of Sherlock Holmes–inspired modern stories, finally had enough of it. After receiving a threat from the estate, he sued in federal court for the right to copy the characters in the portion of Conan Doyle’s stories and novels that are now in the public domain.*

Back in December, the U.S. District Court for the Northern District of Illinois granted Klinger summary judgment, allowing him to use the characters contained in the stories published before 1923. The Estate appealed to the United States Court of Appeals for the 7th Circuit, which issued its decision on June 16, 2014.

The issue before the Court was whether Klinger may copy the characters of Sherlock Holmes and Dr. Watson based on the 46 stories and 4 novels that are now in the public domain, even though Conan Doyle had tweaked those characters in 10 stories published after 1923, stories that remain under copyright until 2022 (depending on the story).

In an opinion by Judge Richard Posner, the Court affirmed the District Court’s decision. Klinger won. So, he may copy Holmes and Watson when the basis for those characters comes from the works in the public domain.

Once a story loses its copyright protection and falls into the public domain (which, in the United States, happens many decades after the author’s death), the elements of the story, including the characters, are available for future authors to insert into new stories. As for the 10 stories published after 1923, Posner explains that they are “derivative from the earlier stories, so only original elements added in the later stories remain protected [under copyright law].”

I’m relieved to see the Court put a stop to an estate’s aggressive efforts to control the culture related to their ancestor’s work. Copyright protection encourages an author’s creativity by giving them a stake in the long-term success of their efforts. However, excessive copyright protection stifles future authors from borrowing from older works to create new ones, even long after the original author has died.

As Posner concludes:

With the net effect on creativity of extending the copyright protection of literary characters to the extraordinary lengths urged by the estate so uncertain, and no legal grounds for extending copyright protection beyond the limits fixed by Congress, the estate’s appeal borders on the quixotic. The spectre ofperpetual, or at least nearly perpetual, copyright [] looms, onceone realizes that the Doyle estate is seeking 135 years (1887-2022) of copyright protection for the character of Sherlock Holmes as depicted in the first Sherlock Holmes story. [emphasis added]

Imagine 135 years of copyright protection! The “spectre of nearly perpetual” copyright is very scary considering how litigious these literary estates can be (Remember Faulkner?).

In this case, the Conan Doyle Estate did not initiate the litigation, but their behavior is reprehensible. From the way I read the facts, Klinger had no choice but to sue them for a declaratory judgment because the Estate held Sherlock Holmes for ransom. The Estate demanded a fee from Klinger, and sent this threat to his publisher:

If you proceed [] to bring out Study in Sherlock II [] unlicensed, do not expect to see it offered for sale by Amazon, Barnes & Noble, and similar retailers. We work with those compan[ies] routinely to weed out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do so with your book as well.

Then, after this threat, the Estate failed to defend itself when Klinger filed for the declaratory judgment in federal District Court. It didn’t even answer the complaint. It only bothered to respond to Klinger’s summary judgment motion, ultimately having the audacity to make the same weak legal arguments in its appeal to the 7th Circuit.

Quite frankly, not only did the Estate try to thwart the creativity of authors inspired by Sherlock Holmes, but they also wasted judicial resources and taxpayer money with this “quixotic” appeal. I’m so glad that 2022 is right around the corner— by then, I hope that Conan Doyle’s heirs will find something better to do than try to collect tolls from their long-dead ancestor’s fans.

*Klinger’s previous publisher had paid a $5,000 fee to the Estate for the first anthology. This case stems from the sequel.

**The Court filings are available at Free Sherlock!Posner’s decision (June 16, 2014) is a fun one to read, and I also recommend listening to the oral argument.

In her latest novel, Fangirl, Rainbow Rowell makes an impassioned argument in favor of fanfiction through Cather Avery, a popular fanfiction writer and college freshman:

[It’s] borrowing… Repurposing. Remixing. Sampling… It’s not illegal… I don’t own the characters, but I’m not trying to sell them, either …

The whole point of fanfiction… is that you get to play inside somebody else’s universe. Rewrite the rules. Or bend them. The story doesn’t have to end.

Cath “remixes” the characters and plots from a series similar to Harry Potter. We meet her as she’s adjusting to college, a transition that exacerbates a rift in her relationship with her identical twin and increases her anxiety over her empty-nesting father’s mental health. Adding to these stresses is a budding romance, which is as challenging as it is exciting for Cath. Aspects of this romance reminded me of my own relationship with my husband, whom I started dating our freshman year of college. Rowell really “gets” the awkwardness and excitement of young love.

While much of this romance resonated with me, it had its flaws. The conflict between Cath and Levi felt contrived, and the resolution felt too convenient. I loved the characters more than I loved the plot, but overall I enjoyed the book.

It would be great to see a “remix” of these characters in a spinoff. I would love to see a bigger role for Reagan, whose sardonic attitude left me chuckling quite a few times, and a more fleshed out relationship between Cath and her twin. I understood the nature of their relationship by the time they went to college, but I wanted to know more about how they got to that point. Without more of this backstory, the relationship between Cath and Wren felt flimsy, making the fact that they sprang from a single zygote largely unnecessary.

I would be interested in reading sequels or prequels to Fangirl that addressed these issues, written by Rowell or even by someone else.

Such derivative works often amount to copyright infringement unless the fan fiction writer is able to establish a defense, such as by arguing that the original author has given his or her implied consent (by, for example, allowing fan fiction to go unchecked long after learning about it) or by arguing that the fan fiction is Fair Use. A fan fiction author is more likely to succeed under Fair Use if, when assessing the purpose and character of the use, the derivative work is educational, a parody, and/or, perhaps most importantly, non-commercial. So, historically, a fan fiction author’s ability to make money off of his or her derivative creations has been limited — as soon as they try to commercialize the work, they can expect a ‘cease and desist’ letter from the owner of the original work’s copyright.

With this flexibility in copyright law, characters can live on long after they’ve parted ways with their originators. Sometimes the original author unexpectedly produces a sequel/extension, such as J.D. Salinger’s previously unpublished work featuring the Caulfields, but fanfiction is the most likely way for a seemingly finite story to continue.

As Cath says, “the story doesn’t have to end.” I wish Rainbow Rowell’s stories wouldn’t.

Is there a specific character in a novel you read lately who should be the focus on his or her own spinoff? Do you read or write fanfiction?

Other Fangirl reviews:

Katie at Words for Worms: “Rainbow Rowell, I am now your fangirl. If I ever meet you, I’ll be the girl who breaks her leg tripping over her shoelace on the way up to the table where you’re signing books. If you could sign my cast instead of my book, that’d be cool too.”

Molly at Wrapped Up in Books (Molly has never steered me wrong!): “Rainbow Rowell captured my heart with Eleanor & Park. I loved her adult novel, The Attachments. But Fangirl solidified her spot among my favorite authors.”

Also, in case you’re interested, here are my comments on Rainbow Rowell’s Attachments, which I highly recommend (Rowell’s description of the main character, Lincoln, reminds me so much of my husband: “built like a tank, dressed like he just won the science fair.”).

Last fall, when the William Faulkner Estate sued Sony Pictures, the Washington Post, and Northrop Grumman for their uses of short Faulkner quotes and paraphrases, I summed up my thoughts on the outrageous litigation by quoting Kurt Vonnegut: “Literature should not disappear up its own asshole, so to speak.”*

As I said in my first post on the subject, When Someone Quotes You, Say “Thank You,” Not “F-You,” Vonnegut uttered those memorable words in a different context, but the sentiment is equally applicable to the short-sighted actions of authors and their estates aimed at limiting others from using their copyrighted material in a creative manner. In particular, I explained that “[The Faulkner Estate’s] litigious nature could chill future references to the author, thus ending the free advertising [that comes with quotations] and possibly hastening the speed with which the public will lose interest in his work.”

For those who don’t know, fan fiction includes stories written by fans of an original work that use characters, plot devices, and sometimes the setting from the original work in a new way. Such derivative works often amount to copyright infringement unless the fan fiction writer is able to establish a defense, such as by arguing that the original author has given his or her implied consent (by, for example, allowing fan fiction to go unchecked long after learning about it) or by arguing that the fan fiction is Fair Use. A fan fiction author is more likely to succeed under Fair Use if, when assessing the purpose and character of the use, the derivative work is educational, a parody, and/or, perhaps most importantly, non-commercial. So, historically, a fan fiction author’s ability to make money off of his or her derivative creations has been limited — as soon as they try to commercialize the work, they can expect a ‘cease and desist’ letter from the owner of the original work’s copyright.

Amazon’s Kindle Worlds, however, legalizes fan fiction by obtaining licenses from the holders of copyrights to allow fan fiction writers to publish derivative works while getting paid for it. Fan fiction has always existed in some form, but perhaps the allure of receiving royalties will encourage more writers to create derivative works, and perhaps even encourage publishers to assist writers by providing editing or marketing. So far, Kindle Worlds has obtained licenses from a small number of copyright holders, and now the list includes Kurt Vonnegut’s estate.

So, unlike Faulkner’s estate, Vonnegut’s estate has decided to use copyright law to its advantage in a way that doesn’t ruin Fair Use for the rest of us. This move opens up my favorite novel, Slaughterhouse-Five, to the creative minds of fan fiction writers, and while I’m not inclined to participate as a writer in Kindle Worlds, I look forward to seeing what others create.

In the past, I’ve wondered whether certain examples of derivative works are homages to the original work or merely rip-offs, and I’ve heard others claim that fan fiction “dilutes” the original work, but I think none of these criticisms outweigh the potential benefits of derivative works to the original author or his/her estate. For example, when I read Margot Livesey’s shallow reiteration of Charlotte Brontë’s Jane Eyre (which is no longer under copyright and so presents none of the legal challenges of typical fan fiction), it only made me long to read the original again, not think less of it. Overall, references through quotes, paraphrases, and even through fan fiction keep old books alive, something Faulkner’s estate doesn’t understand.

Faulkner has been dead for more than fifty years and Vonnegut hasn’t been with us for six, making it impossible for these authors to engage with readers the way modern authors do today. They can’t tweet, they can’t blog, and they certainly can’t make personal appearances on The Daily Show or Colbert Report or at anyone’s local bookshop (except through posthumous accounts and impersonators). So, to remain relevant by connecting with a new generation of readers, these deceased authors need new authors to reference them, and participation in Kindle Worlds may be one way to achieve this type of recognition while still protecting their copyright.

The minute Kurt Vonnegut’s books lose their place in literature is the moment I will feel like an old woman and, dare I say it, I may well find myself starting a diatribe with, ‘Kids these days…’ Let’s hope it never comes to that.

And maybe now it won’t. Maybe my Dad’s next class of students will learn about Kurt Vonnegutafter stumbling upon derivatives like Dog’s Cradle and Zombie Slaughterhouse. We’ll see.